Plyer v. Doe Brief Amicus Curiae

    *



iv

Terrace v. Thompson, 263 U.S.
197 (1923) ....................

United States v. Texas Educa­
tion Agency (Austin Indepen­
dent School District), 467 
F.2d 848 (5th Cir. 1972) (en 
banc); 532 F.2d 380 (5th Cir.
1976) ; 564 F.2d 164 (5th Cir.
1977) , cert, denied, 99 S. Ct.
3106 (19"?"9 ) ...... ..............

Ward v. Flood, 48 Cal. 36 (1874)
Webb v. O'Brien, 263 U.S. 313 

(1923) .....................

Yamashita v. Hinkle, 260 U.S.
199 (1922) ....................

Yick Wo v. Hopkins, 118 U.S. 356 
(1886) .......................

Zamora v. New Braunsfels Indepen­
dent School District, 519 F 2d 
1084 (5th Cir. 1975) (per curiam) ...

Page

10

16 1
I

8

10 

11 

19,20

16

Federal Statutes
Act of July 5, 1884, ch. 220,

§ 4, 23 Stat. 115 ..................  g

Act of October 1, 1888, ch.
1064, § 1, 25 Stat. 504 ............  9

Act of April 27, 1904, 33
Stat. 428 .......................  g

Act of Oct. 3, 1965, Pub. L.
No. 94-571, 66 Stat. 163 ...........  17

1



1

Table of Contents
Page

Table of Authorities ..................
INTEREST OF AMICUS ....................
SUMMARY OF ARGUMENT .................

4ARGUMENT ...........................
I STATES HAVE HISTORICALLY 

USED FEDERAL IMMIGRATION 
CLASSIFICATIONS AND DOCU­
MENTATION requirements as 
TOOLS OF INVIDIOUS 
discrimination against 
ASIANS IN AMERICA ...............

II. SECTION 21.031 AND OTHER 
STATE LEGISLATIVE CLASSI­
FICATIONS DIRECTED AGAINST 
UNDOCUMENTED ALIENS WILL 
INEVITABLY HAVE A DISCRIM­
INATORY IMPACT UPON RACIAL 
AND ETHNIC minorities ...........

CONCLUSION .......................... 21



Table of Authorities

Xt.

ii

Cases Page
Alvorado v. El Paso Independent 

School District, 426 F. Supp.
575 (W.D. Tex. 1976), aff'd,
593 F.2d 577 (5th Cir. 1979) ...... 16

Asakura v. City of Seattle,
265 U.S. 332 (1924) ............... 11

Briscoe v. Bell, 432 U.S. 404
(1977) ............................ 15

California Delta Farms, Inc. v.
Chinese American Farms, Inc.,
207 Cal. 298, 278 P. 227 (1929) ___ 10

Castaneda v. Partida, 430 U.S.
482 (1977) ........................ 15

The Chinese Exclusion Case,
130 U.S. 581 (1889) ............... 9,12

Cisneros v. Corpus Christi
Independent School District,
324 F. Supp. 599 (S.D. Tex.
1970) , aff 'd, 467 F.2d 142 
(5th Cir. 1972) (en banc), 
cert, denied, 413 U.S. 930 (1973) .. 16

Cockrill v. California, 268 U.S.
258 (1925) ........................ 10

Doe v. Plyler, 628 F.2d 448
(5th Cir. 1980) ................... 15

Ex parte Ah Cue, 101 Cal. 197
Cl 8 9 4) ............................ 13



Page
iii

Ex parte Ah Pong, 19 Cal. 106
(1891) .............................  6

Fong Yue Ting v. United States,
149 U.S. 698 (1893) ................  14

Frick v. Webb, 263 U.S. 326 (1923) --- 10
Graves v. Barnes, 343 F. Supp.

704 (W.D. Tex. 72), aff'd
sub nom., White v. Regester,
412 U.S. 755 (1973)   15

Hernandez v. Texas, 347 U.S.
475 (1954)   15

Keyes v. School District No. 1,
413 U.S. 189 (1973)   15

Morales v. Shannon, 516 F.2d 411 
(5th Cir.), cert, denied, 423
U.S. 1034 (1975)   16

Ozawa v. United States, 260 U.S.
178 (1922)   10

People ex rel. Attorney General
v. Naglee, 1 Cal. 232 (1850)   6

Porterfield v. Webb, 263 U.S.
225 (1923)   10

State v. Hirabayashi, 233 P. 948 
(Wash. 1925), aff'd, 246 P. 577 
(1926), aff'd, 277 U.S. 572 (1928) .. 10

Takahashi v. Fish and Game
Commission, 334 U.S. 410 (_1948) .... 11

Tape v. Hurley, 66 Cal. 473,
6 P. 129 (1885) ......... 8



Pa,ge
V

Chinese Exclusion 
ch. 126, §§ 1/

Act of 1882, 
14, 22 Stat. 58 I, 8,9,

II, 13

Geary Act of 1892, ch. 60,
27 Stat. 25 .................

Immigration Act of 19 24, ch. 19 0 
43 Stat. 153 ................

Immigration
of 1965,

and Nationality Act 
§ 202, 8 U.S.C. § H52

13

9

17

State Statutes
Act of May 17, 1861, ch. 401,

§ 93, 1861 Cal. Stats. 448 .........
Ch. 51, § 1, 1880 Cal. Stats..........
Ch. 117, § 1, 1885 Cal. Stats. 99 ....
Ch. 140, §§ 6, 13, 1891 Cal. Stats. ...
Ch. 159, 1863 Cal. Stats. 194 ........
Ch. 193, § 33, 1893 Cal. Stats. 253 ...
Ch. 329 , § 8, I860 Cal. Stats.........
Ch. 417, 1915 Cal. Stats. 690 ........
Ch. 685, § 1, 1921 Cal. Stats. 1160 ...
California State Constitution

of 1879 ............................ 6,7



M

vi
Page

Fish and Game Code, § 990, 
ch. 181, § 3, 1945 Cal.
Stats. 660 ....................... 11

Foreign Miners' License Tax, 
ch. 97, § 1, 1850 Cal. Stats.
221 .............................. 6

Game Laws, ch. 339, § 2, 1923
Cal. Stats. 696 .................. 11

General School Law of 
California, § 1662,
1880 Cal. Stats................... 8

Texas Education Code, § 21.031 .....

Other Authorities
2 U.S. Code & Cong. Adm. News

1653 (1952) ......................
F. Chuman, The Bamboo People:

The Law and Japanese Americans 
(1976) ........................... 17

M. Coolidge, Chinese Immigration
(1909) ........................... .. 6,17

Ferguson, "The California Alien 
Land Law and the Fourteenth 
Amendment," 35 Cal. L. Rev. 61 
(1947) ...........................

Gordon, "The Racial Barrier to 
American Citizenship," 93 U. Pa.
L. Rev. 237 (1945) ............... 9



Vll
Page

j. Hendrick, The Education of 
Non-Whites in California,
1849-1970 (1977)   8

B. Lasker, Filipino Immigration
C1931) .............................  17

McGovney, The Anti-Japanese Alien 
Land Laws of California and Ten 
Other States, 35 Cal. L. Rev. 7 
(1947)   10

North, "Asia-Pacific Illegal Aliens: 
A Discussion of Their Status, 
Limitations, and Rights Under the 
Law," in U.S. Commission on Civil 
Rights, Civil Rights Issues of
Asian and Pacific Americans:
Myths and Realities (1979) .........  19

E. Sandmeyer, The Anti-Chinese
Movement in California (1939) ......  7,17

U.S. Commission on Civil Rights, 
Civil Rights Issues of Asian 
and Pacific Americans: Myths
and Realities (1979)   1,19

U.S. Comm'n on Civil Rights,
The Tarnished Golden Door:
Civil Rights Issues in Immigra­
tion (1980)   17

U.S. Department of State, Bureau 
of Consular Affairs, Immigrant 
Numbers for August 1981, Vol. V,
No. 11 (1981)   18

C. Wollenberg, All Deliberate Speed, 
Segregation and Exclusion in 
California Schools, 1885-1975 
(1976) .............................. 8



INTEREST OF AMICUS
The Asian American Legal Defense and 

Education Fund (AALDEF), is a non-profit 
corporation established in 1974 under the laws 
of the States of California and New York. It 
was formed to protect the civil rights of Asian 
Americans throughout the nation through the 
prosecution of lawsuits and the dissemination

of public information.
In the last fifteen years, there has been 

a dramatic increase in Asian immigration to the 
United States. While Asians now comprise one- 
third of the legal immigration to this country 
each year,—^ a number of Asians are also 
undocumented aliens. It is AALDEF's experience 
that Asian undocumented aliens suffer from the 
most extreme forms of exploitation in all

1. See U.S. Comm'n on Civil Rights, Civil 
Ricrhts Issues of Asian and Pacific American_s_A_ 
Myths and Realities 11 (19/9) (hereinafter 
'"Civil Rights Issues"), citing annual reports 
of the Immigration and Naturalization Service,



-2-

aspects of their daily lives, which merely 
compound the burdens of race and national 
original that continue to disadvantage Asian 
Americans in general.

A primary concern of amicus is discrimi­
nation against Asian Americans on the basis 
of their immigration status. From the Chinese 
Exclusion Act of 1882 to the national origins 
quota system, abolished in 1965, our nation's 
immigration and nationality laws have repeatedly 
singled out Asians for exclusion and discrimi­
natory treatment. These immigration laws, 
which utilized invidious racial and national 
origin classifications, were then used in 
conjunction with state laws to deny Asian 
Americans equal access to education, employment, 
business opportunities and government benefits.

As a result of this historical discrimina­
tion against Asian immigrants, amicus views 
with great concern state laws, such as 
section 21.031 of the Texas Education Code, 
which deprive undocumented aliens of educational



of their
2/immigration status.

and other opportunities because

SUMMARY OF ARGUMENT̂

State statutes have relied historically 
upon apparently neutral imsnigratron classifi­
cations and documentation requirements to 
subject aliens to invidious discriminate. 
Federal immigration and nationality laws laid 
the groundwork, for a comprehensive scheme of 
state statutes that successfully restricted 
the rights of Asian immigrants to work, travel 
and own property for several decades. Although 
racially exclusionary immigration laws are now 
obsolete, their ostensibly neutral character 
continues to provide a convenient device to 
discriminate against aliens residing in this

country.
Section 21.031 of the Texas Education 

Code bears an ominous resemblance to previous

2. The parties nave consented “
Of this brief, and letters 
been filed with the Clerk..



li

state laws which subjected Asian immigrants 
to invidious discrimination. Although 
section 21.031 appears to apply equally to 
all undocumented aliens who enter the country 
illegally, the deprivation of tuition-free 
education in fact falls almost exclusively 
upon Mexican children. The discriminatory 
intent behind section 21.031 can also be 
inferred by the long history of discrimination 
against Hispanics in Texas. Since the 
statutory classification of undocumented aliens 
will inevitably burden racial and ethnic 
minorities, it should be subject to heightened 
judicial scrutiny under the Equal Protection 
Clause of the Fourteenth Amendment.

ARGUMENT
I. STATES HAVE HISTORICALLY USED 

FEDERAL IMMIGRATION CLASSIFICA­
TIONS AND DOCUMENTATION REQUIRE­
MENTS AS TOOLS OF INVIDIOUS 
DISCRIMINATION AGAINST ASIANS 
IN AMERICA.

Throughout history, restrictive state 
statutes have been used in concert with

- 4 -



- 5-

immigration laws and alien documentation re­
quirements to discriminate against racial and 
ethnic minorities. Although section 21.031,
„hich denies tuition-free education to Mexican 
undocumented alien children, is one recent 
example, the precursors of such laws were en­

acted almost a century ago in a series of 
facially neutral state statutes that targeted 
Asians for invidious discrimination because

of their iimaigration status.
The first group of Asians to immigrate 

in substantial numbers to the United States 
were the Chinese, who arrived in 1847 in 
California as male contract laborers in mining, 
railroad, agriculture and other menial occupa­
tions. As the Chinese came into competition 
with whites in the labor market, racist and 
anti-alien sentiments in the depression economy 

of the 1870's led to the passage of federal 
laws to curtail further Chinese immigration 
and state laws to restrict substantially the 
rights of Chinese who remained in this country.



k

Early state laws which apparently limited 
the opportunities of all noncitizens were in 
fact directed at the Chinese. As early as 
1850, the California Legislature enacted the 
Foreign Miners' License Tax,-/ which was repro­
duced and translated into Chinese for mass 
distribution and enforced almost exclusively 
against Chinese aliens.—/ Moreover, Article 
XIX, Section 4 of the California State Consti­
tution of 1879 proclaimed that "The presence 
of foreigners ineligible to become citizens is 
declared to be dangerous to the well-being of 
the State. . . . "  The provision further 
explained that the term, "foreigners ineligible 
to become citizens," referred specifically to

3. Act of April 13, 1850, ch. 97, § 1 et seq., 
1850 Cal Stats. 221, sustained in People ex
ex rel. Attorney General v. Naglee, 1 Cal. 232 
(1850)(repealed 1851).
4. The California Legislature subsequently 
attempted to make a statutorily conclusive 
presumption that all Chinese were "miners.1'
Act of May 17, 1861, ch. 401, § 93, 1861 Cal. 
Stats. 448, invalidated in Ex parte Ah Pong,
19 Cal. 106 (1861). See M. Coolidge, Chinese 
Immigration 36 (1909).

- 6-



- 7-

Chinese, who were to be removed beyond muni­
cipal boundaries or, alternatively, placed in 
official Chinese ghettos.-^ And in 1880, 
California passed a law prohibiting the issuance 
of licenses for the transaction of any business 
or occupation to "any alien ineligible to become
an elector in the state"—^--a class that was

7/predominantly Chinese.—
Other state statutes directed against 

Asian immigrants were couched in overtly racial 
terms. Xn the area of education, for example, 
California's public education law was amended 
in 1860 to permit separate schools for the 
education of "Negroes, Mongolians and Indi-

5. Other provisions in the 1879 State Consti­
tution prohibited the employment of Chinese by 
any California corporation, Art. XIX, § 3 ; 
barred public employment of Chinese, id. § 3; 
and denied Chinese the right to vote and to 
own or inherit real property. Art. I.

6. Ch. 51, § 1, .1880 Cal. Stats.
7. See E. Sandmeyer, The Anti-Chinese Moyê - 
ment in California' 74 (.19391.



-8-
ans, ^ but later repealed for economic reasons
When efforts to exclude Chinese and Japanese
children altogether from public education faile-
see, e.g.f Tape v. Hurley, 66 Cal. 473, 475,
6 P. 129 (1885) (Chinese); Aoki v. Deane
(Japanese), specific statutory authority was
created for the establishment of separate

.... 10/schools for Chinese and Japanese children.
A major turning point occurred when Congre: 

passed the Chinese Exclusion Act of 1882.
The Act initially suspended all immigration of

8 Ch 329, § 8, 1860 Cal. Stats.; see also 
ch. 159, 1863 Cal. Stats. 194. The constitu­
tionality of the separate school law was upheld 
in Ward v. Flood, 48 Cal. 36 (1874).
9. General School Law of California,§ 1662 at 
14, 1880 Cal. Stats.; see C. Wollenberg,_All_ 
Deliberate Speed, Segregation and Exclusion in 
California Schools, 1885-1975 24-26 (1976).
10 Ch. 117, § 1, 1885 Cal. Stats. 99 (Chinese] 
ch 193, § 33, 1893 Cal. Stats. 253 (Indians); 
ch. 685, § 1, 1921 Cal. Stats. 1160 (.Japanese). 
See generally C. Wollenberg, All Deliberate 
Speed, id. at 28-107; J. Hendrick, The Educa- 
tIon~of~Non-Whites in California, 1849-1970 
(1977)“
11. Act of May 6, 1882, ch. 126, § 1, 22 Stat. 
58.



Chinese laborers for ten years and explicitly
prohibited Chinese aliens from becoming citi-

12/  m.zens.—  The Act was extended several times 
until 1904, when a permanent and total ban 
against all Chinese immigration was instituted 
Through its unprecedented use of immigration 
laws to create an official national policy of 
racial discrimination toward Chinese immigrants, 
Congress laid the groundwork for future state 
laws that would discriminate against all Asian 
immigrant groups.

The federal immigration classification, 
"aliens ineligible for citizenship, " M / soon

12. Id. § 14.

13. Act of July 5, 1884, ch. 220, § 4, 23 
Stat. 115; Act of Oct. 1, 1888, ,ch. 1064, § 1, 
35 Stat. 504; Act of April 27, 1904, 33 Stat. 
428. This legislation was upheld in The Chi- 
nese Exclusion Case, 130 U.S. 581, 609“'(1889) .
i4* See generally Gordon, "The Racial Barrier 

Citizenship," 93 U. Pa. L. Rev.
337 (1945). Ineligibility for citizenship 
later became the basis for excluding all 
Japanese immigration to the United States. 
Immigration Act of 1924, ch. 190, 43 Stat.

2 U.S. Code Cong. & Adm. News 1653



- 10-

emerged as code words for state-sanctioned
racial discrimination against Asians, primarily 
the Japanese. A series of alien land laws 
passed in the 1920's predicated ownership of 
land upon eligibility for citizenship. The 
Supreme Court in Ozawa v. United States, 260 
U.S. 178, 195 (1922), sanctioned the applica­
tion of such laws against "the brown and yellow 
races of Asia," and state courts routinely
upheld their validity as applied to Asians. 15/

15. See, e.g., California Delta Farms, Inc. 
v. Chinese American Farms, Inc., 207 Cal. 298, 
ana. 778 P. 227. 230 (1929); State v. Hiraba-
yashi, 233 P. 948, 949 (S. Ct. Wash. 1925), 
af f 'd, 246 P. 577 (1926), aff'd, 277 U.S. 572
(1928); see also Terrace v. Thompson, 263 U.S. 
197, 216-21 (1923); Porterfield v. Webb, 263
U.S. 225, 233 (1923); Webb v. O'Brien, 263 U.S. 
313, 324 (1923); Frick v. Webb, 263 U.S. 326,
334 (1923); Cockrill v. California, 268 U.S.
258, 263 (192577 See generally McGovney, "The 
Anti-Japanese Land Laws of California and Ten 
Other States," 35 Cal. L. Rev. 7 (1947); Fer­
guson, "The California Alien Land Law and the 
Fourteenth Amendment," 35 Cal. L. Rev. 61 
(1947) .



In addition, the facially neutral requirement 
of "ineligibility for citizenship" was used

- 11-

to exclude Japanese from incorporating busi-
;sin
18/

1 7 y/nesses,— ^ owning or possessing firearms,
securing public employment,— 7 and obtaining
pawnbroker licenses— '/ and commercial fishing

20/licenses.—
Alien documentation requirements also 

developed initially as a device for racial 
discrimination against Asians. Section 4 of 
the Chinese Exclusion Act of 1882 was apparently 
the earliest documentation requirement for 
aliens residing in the United States. It 
required that all Chinese laborers planning to

16. See Yamashita v. Hinkle, 260 U.S. 199 , 200 
(19 22~)~.

17. Game Laws, ch. 339 , § 2 , 1923 Cal. Stats. 
696 .
18. Ch. 417, 1915 Cal. Stats. 690.
19. See Asakura v. City of Seattle, 265 U.S. 
332, 343" (1924) (provision invalidated) .
20. Fish & Game Code, § 990 as amended, ch. ̂ 
181, § 3, 1945 Cal. Stats. 660; see Takahashi 
v. Fish & Game Comm'n, 334 U.S. 410, 426 (1948) 
(Murphy, J., concurring).



- 12 -

leave the United States establish their legal 
presence in this country and provided that 
only those laborers holding a "certificate of 
registration" were allowed to re-enter the 
United States. Although the documentation 
requirement was repealed in 1888, it was sub­
stituted by a more malevolent statute which 
prohibited all Chinese laborers from returning 
to this country and voided all registration 
certificates previously issued for this 
purpose.— /

Shortly thereafter, California sought to 
impose its own registration requirements to 
restrict further the rights of Chinese within 
the state.— / According to the statute, no 
Chinese were to be admitted into the state 
without such a certificate, and they would be 
subject to deportation if they could not pro­
duce such identification.— / This documenta-

21. See The Chinese Exclusion Case, simrs
130 U.S. at 581, 599. -------  — “—
22. Ch. 140, § 13, 1891 Cal. Stats.
23 . Id. § 6 .



- 13 -

tion requirement was further used to burden 
the rights of Chinese to use public transpor­
tation. Section 3 of the Act required agents 
of all railroads, stagecoach lines and steam­
ship lines in California to demand that Chinese 
produce a certificate of residence before they 
could purchase tickets on public carriers.
The failure to produce such a certificate 
allowed agents to arrest the "undocumented" 
Chinese alien. Although this statute was sub­
sequently declared in excess of state power,
Ex Parte Ah Cue, 101 Cal. 197, 198 (1894), a 
California delegation later pressured Congress
to adopt stricter registration requirements 

24 /for Chinese.—

24. The Geary Act of 1892, ch. 60, 27 Stat.
25, required all Chinese laborers to obtain 
certificates of residence within one year 
after passage of the act, or they would be 
deemed unlawfully in the United States and sub­
ject to arrest. Section 6 of the Act further 
provided that a Chinese could be deported un­
less he could "establish clearly to the satis­
faction of [a] judge that by reason of accident

(footnote continued on next page)



The state statutes which built upon 
racist immigration laws to discriminate 
against Asians are now an anachronism. How 
ever, their legacy stands as a continuing 
reminder of how immigration classifications 
and documentation requirements were used as 
devices for discriminating against racial 

minorities.

- 14- ^ _________

II. SECTION 21.031 AND OTHER STATE 
LEGISLATIVE CLASSIFICATIONS 
DIRECTED AGAINST UNDOCUMENTED 
ALIENS WILL INEVITABLY HAVE A 
DISCRIMINATORY IMPACT UPON 
RACIAL AND ETHNIC MINORITIES.

It is'undisputed that the primary victims

of section 21.031 of the Texas Education Code 
are children of Mexican origin, since almost

(footnote continued from previous page)
sickness, or other unavoidable cause, he has 
been unahe to procure his certificate and 
to the satisfaction of the court, and by at 
least one credible white witness, that he 
a resident of the United States at the time 
of the passage of the act." The Supreme Court 
upheld the constitutionality of this statutory 
provision in Fong Yue Ting v. United States, 
149 U.S. 698, 732 (1893).



- 15-

all undocumented aliens in Texas are Mexican.—  
Because immigration status has historically been 
used to discriminate against racial and ethnic 
minorities,— 7 section 21.031 should be con­
sidered within the broader context of discrimi­
nation against Hispanics as a minority group 
in Texas.

Courts have noted that Hispanics are an 
identifiable ethnic minority entitled to 
protection under the Equal Protection Clause, 
see, e.g., Keyes v. School District No. 1,
413 U.S. 189, 197 (1973), and it is well
established that Hispanics in Texas have been 
subject to a long history of invidious dis­
crimination in such areas as education, employ-

. . 27/ment, economics, health and politics.—  In

25. See Doe v. Plyler, 628 F.2d 448, 451 n.6 
(1980).
26. See point I supra.
27. Graves v. Barnes, 343 F. Supp. 704, 728 
(W.D. Tex. 1972), aff'd sub nom., White v, 
Regester, 412 U.S. 755 (1973); see also Briscoe 
v. Bell, 432 U.S. 404, 406 & n.2 (1977); Cas- 
taneda v. Partida, 430 U.S. 482, 487, 495 
(1977); Hernandez v. Texas, 347 U.S. 475, 478 
(1954) .



- 16-

particular, courts have recognized the state's 
repeated failure to provide adequate educa­
tional and bilingual services to Hispanic 
children in Texas schools.—  ̂ In view of the 
widespread discriminatory practices against 
Hispanics in Texas, particularly in the area 
of education, section 21.031 should be regarded 
as yet another example of discrimination against 

Mexicans based on their national origin.

28 . 
dent

See, e.g.f Alvorado v. El Paso Indepen
School District,

Tex. 1976) _ 
1979); United 
(Austin

aff'd,
426 F . Supp. 575 (W.D 

593 F.2d 577 (5th Cir. 
States v. Texas Education Agency 

independent School District), 467 F .2d 
848 , 863-64 , 869-70 (5th Cir. 19//) (en banc) ;
532 F .2d 380, 391 (5th Cir. 1976); 564 F 2d
164, 174 (5th Cir. 1977), cert, denied, 99 S.

Zamora v. NewCt. 3106 (1979). 
dependent School District, 
(5th Cir. 197b] (per 
non, 516 F.2d 411 (5th 

1034

Braunsfels In- 
F .2d 1084. 1084

cert.
519 F .2d 1084 

curiam); Morales v . 
Cir. 1971T~

4"2~3 u.S. 1034 (1975); Cisneros v
Independent School District, 324 
617-21 (S.D . TexT 19 70) , aff'd,

1972) (en banc)
(1973) .

Shan- 
denied,

(5 th 
U.S.

Cir. 
930

. Corpus Christi 
F. Supp. 599, 
467 F.2d 142 

cert. denied, 413



- 17-

Moreover, in light of current immigra­
tion trends, the discriminatory impact of 
statutory classrfications directed at undocu­

mented aliens will fall P-n>arrly upon alrens 
o£ certain distinct racial and ethnic groups-

• ~ t ̂ raelv b6csus6i.e., Mexicans and Asians. Larg y
• e rpqtrictive immigration laws, of previous restriouxv

numerical quotas for Mexico, the Philipp 
China and Hong Kong have been continuously

. n 30/ whiie the quotas for Eurooversubscribed,
--- ------------- - "T „ rut by almost 50 is29. Mexican immigra 1 0  immigrationWhen the 1976 amendments to t per_country 
and Nationality Act I P  Western Hemisphere
limitation of 20 000 up 1965f Pub. L.
countries. Act °£ 0c“ 5* see U.S. Comm'n on 
No. 94-571, 66 aTS, ished golden Doorj--ClvI—
civlhisRigssuJs

30. See The TarnishedJSolden ̂ |l —  immlgrants 
There is an annua country, Immigration andfor each independent c o u n t r y , ^ § 1152(a)
Nationality Act § 202(a), imnigrants for each
U 98° V n t n a r e a  s i c h  a s  Hong K o Sg . S i  * 202 COdependent area, s _



- 18 -

pean and other countries are seldom filled 
In August 1981, for example, oertaln £amlly 

elatives of citrzens and resident aliens 
siting to emigrate from the Philippic faCed 
wasting periods of three to eleven years, 
while the spouses and unmarried sons and 
daughters of Mexrcan resident aliens faced 
backlogs of thirteen years. m  addrtion, there 
was a waiting period of up to twelve years for 
certain immigrant workers from Hong Kong and 
the Phrlippines. 31/ Given the enormous

and lengthy delays rn the visa petitionrng 
process for Mexican and Asian immigrants, it 
is not surprising that many will seek to come 

the United States even temporarily and 
eventually become part of this country's un­
documented alien population. W

31. See U.S. Dep't of = □sular Af ffli t<= t • tste, Bureau of Con-
mi. v o i .  v , ' N r T F f f f g f r r ^ ^

m e n t e f a U e S  ° f  A sian  “ ndocu-
16,000 have been a£n?eh ' r f j  l e a s t  9 ' 50t> to  
Im m igration  and N a t S r a l S S o n ^ e ^ i L ^  th e  

C footnote  co n tin u ed



( »

-19-

In V- Hopkins, 118 U.S. 356 (1886),
this Court invalidated a facially neutral Cali­
fornia laundry ordinance which revealed none of 
the prejudices against Chinese aliens to whom 
it had been applied exclusively. The Court

(footnote continued from previous page)
the past few years. Most Asian undocumented 
aliens entered the country with valid entry 
ocuments but subsequently violated the terms 

of their visas. See North, "Asia-Pacific Illegal Aliens: '- ---- A Discussion of Their Status,
Limitations, and Rights Under the Law," Civil
Rights Issues, supra note 1, at 238-39. -----

With respect to Asian undocumented aliens 
it is the experience of amicus that many live 
in densely-populated Asian American communi­
ties of urban areas throughout the country 
Most are relegated to low-paying jobs with 
ong working hours, often as garment factory 
restaurant or health care workers. Fearful 
or reprisals by their bosses, Asian undocumented 
aliens hesitate to complain about their employ-
oJfU qUent refusals to pay minimum wage or overtime compensation and are afraid to par­
ticipate in worker organizing efforts to 
secure better working conditions. They are
ahoniarly r^luctant to complain to landlords about poor housing conditions, to seek police 
assistance_if they are victims of c r im e f  or to
At thP medlCJ1 care in the event of illness.At the same time, Asian undocumented aliens nav 
more rn taxes than they receive in social se£ 
theel ? ?  h“ ke substantial contributions to 
ana ns11 bein9 of Asian American communities and the_general society. See qenerallv civil 
Rights Issues, id. at 181,~582 ~ -----~ ---—



concluded: - 20'-

The fact of this discrimina­
tion is admitted. No reason 
for it is shown, and the con­
clusion cannot be resisted, 
that no reason for it exists 
except hostility to the race 
and nationality to which the 
petitioners belong, and which 
in the eye of the law is not 
justified.

Id. at 374.
Like the superficially neutral state 

ordinance at issue in Yick Wo v. Hopkins, 
supra, section 21.031 apparently applies to 
undocumented aliens of all races and 
nationalities. However, the class—fication 
is inevitably discriminatory against Mexican 
aliens, in light of the ethnic background of 
virtually all undocumented aliens in Texas and 
the long history of discrimination against 
Hispanics in that state. Accordingly, section 
21.031 should be subject to the heightened 
judicial scrutiny traditionally accorded to 
racial and national origin classifications.



- 21-

CONCLU'SION
For the reasons set forth above, the 

judgment of the court below should be 
affirmed.

Respectfully submitted,

MARGARET FUNG 
STANLEY MARK
Asian American Legal Defense 
and Education Fund 
350 Broadway, Suite 308 
New York, New York 10013 
(212) 966-5932

BILL LANN LEE*
10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397
Attorneys for Amicus Curiae

*Attorney of Record

Dated: September 28, 1981
New York, New York